Violation of human rights and civil freedoms by abusing the pre-trial detention as a measure to secure the presence of the accused in the criminal proceedings (original) (raw)
Detention - Analysis of the Domestic and International Legislation (Theory and Practice)
THE EURO-ATLANTIC VALUES IN THE BALKAN COUNTRIES
This paper elaborates the key role of detention in criminal proceedings and provides guidance for its successful application in accordance with the domestic and international legal standards and human rights. Furthermore, it emphasizes the importance of the implementation of other measures to ensure defendant’s presence and successful criminal case (hereinafter referred as alternative measures). The way in which analysis of detention is applied in North Macedonian judiciary, indicates significant deficiencies in decisions ordering and continuation of this measure expressed by inadequate explanations of the legal grounds. Namely, the conclusion is that the explanations are stereotyped, non-individualized and include a retelling of the legal text of the Law on Criminal Procedure. Inescapable impression is that the approach of judges when assessing which measure to be enforced, often begins and ends with detention, instead first evaluating the possibilities afforded by other provisions...
Excessive use of pre-trial detention in Azerbaijan: Examination of the causes
International Journal of Law, Crime and Justice, 2019
As a country with a criminal justice system that has historically put too much emphasis on the use of custodial preventive measures, Azerbaijan has suffered from the consequences of the overuse of pre-trial detention. The management of detention centres has become a financial and logistical burden for the government, and the excessive use of pre-trial detention as a preventive measure for accused persons has also had deleterious effects on detainees and communities. Through the analysis of the secondary data, this article attempts to understand the causes of the overuse of pre-trial custody in the context where a variety of alternative options is available. The paper argues that a deviation from the guidelines on the part of the judiciary, procurators and investigators, corrupt practices in the pre-trial phase and sufficient degree of judicial independence have been the key reasons behind the over-reliance on pre-trial detention.
In this article, we take issue with ECHR standards on pre-trial detention. These standards are considered panacea for the reported overuse of pre-trial detention in Europe as they prioritise the legitimate purposes of detention as safeguards to ensure the principle of ultima ratio. Yet this purposes are heterogeneous as pre-trial detention protects the pending proceedings but also averts risks pertinent to criminal policy. In our analysis we discuss the shortcomings of the ECHR standards to fully protect from abusive detention. Moreover, we reveal internal inconsistencies with the presumption of innocence. One major example is the use of pre-trial detention to prevent re-offending, which blurs the boundaries between custody on remand and preventive detention. Additionally, we delve deeper into the obligation to use milder measures as part of the ECHR standards, which remains superficial and vague. Conclusively, we encourage the reflection and re-examination of the ECHR standards for pre-trial detention, instead of focusing merely on their better enforcement.
The Right to be Present at Trial in Criminal Proceedings under Bulgarian Legislation
2020
Bulgarian Criminal Procedure Code introduces different types of legal means which guarantee the right of the accused person to be present at his/her criminal trial. The introduction and transposition of Directive 2016/343 into the Bulgarian legislation provides more secure guaranties to the accused person in cases when his/her trial is viewed in his/her absence. Bulgarian case-law represents more clarification on the right itself and how it could be efficiently exercised. Judges and prosecutors are becoming more aware of the need to accrue the participation of the accused person in his criminal trial and on this basis, they take additional measures to ensure his/her presence. The statistical data from the Supreme Court of Cassation show that there is an increase in the application of legal remedies that guaranties basic rights and principles of the accused and ensures the conduction of fair trial.
Detention in the Criminal Procedure Legislation of Hungary
Strani pravni život, 2023
The paper presents the situation of detention in Hungary. The legal institution of detention is the deprivation of personal liberty without a final court decision, i.e., a final decision. The Hungarian Criminal Procedure Act, which entered into force on 1 July 2018, aims to renew the practice of detention. According to the new regulation, detention can be applied only if the intended purpose of the proceedings cannot be ensured by less coercive measures (criminal supervision, bail). The paper describes the legal reasons for the detention, the statistics, and the previous problems in the case law that characterized the legal institution.
Challenges in the Processes of Criminal Trials and Detention Caused by the COVID-19
45 YEARS HIGHER EDUCATION IN THE AREA OF SECURITY – EDUCATIONAL CHALLENGES AND SECURITY PERSPECTIVES
ion that COVID-19 caused the backlog. The paper questions whether post-COVID recovery plans are realistic, particularly in relation to any increase in remote hearings. It concludes that a more fundamental shift should take place in dealing with criminal cases to enable faster and more effective access to justice for victims of all crimes. This article gives reports on the impact of court delays through analysis of the Macedonian law on the criminal procedure through the provisions and the process of pre-trial detention and detention on remand as well as the main hearing. If the physical presence of a lawyer in proximity to the detained person is not possible, there should be a confidential and unobserved line of communication between them, to enable detainees to have effective, frequent, and confidential access to their lawyers. The current Law on Criminal Procedure does not contain a basis for conducting a remote trial, i.e., a trial through a two-way communication platform without...